31/10/13

originally published at MLRC MediaLawLetter, October 2013.Like other Latin American countries, Argentina does not have specific laws governing liability for online intermediaries for third party posted content. The absence of specific laws on intermediary liability has become particularly problematic in defamation and invasion of privacy cases, with judges applying laws passed in an era when the Internet was not even imagined. In some cases, judges have ordered intermediaries to pay damages for third party content, but other cases have held the opposite. A recent decision from the Argentina Supreme Court may provide some help. The Court applied an old doctrine to decide that an intermediary should not be liable. Sujarchuk Ariel Bernardo c/Warley Jorge Alberto s/daños y perjuicios” –SC, S.755, L.XLVI.

Background

The facts of the case are simple. The defendant, Mr. Warley, posted on his blog an article written by another person. The article, according to the plaintiff Mr. Sujarchuk harmed his reputation and he claimed for damages against Mr. Warley, who, besides posting the article, added as a title to the post containing the word “sinister” which was not in the original article. Plaintiff won the case at the First Instance Judge and also at the Court of Appeal. However, the Argentinean Supreme Court reversed the decision, applying the doctrine known as “Campillay” (Fallos 308:789). The name of the doctrine came from a case decided in the 1980s, and the holding relevant for the “Sujarchuk” case is: a journalist or a publisher is not liable for the content published if he or she mentioned clearly the source from where the content is taken and also he or she has not contributed substantially to the content that was published. The Supreme Court followed the arguments of the Attorney General when she gave her opinion in the case. After highlighting the importance of freedom of expression as a basic human right and its importance for democracy, the Attorney General cited the Campillay doctrine and noted that in the instant case the content of the article at issue was not written by the defendant but only posted to his blog. Regarding the title created by the defendant, the Attorney General considered that this didn’t change substantially what the article itself said, so it did not defeat the Campillay doctrine: defendant merely reproduced content written by a third party and identified the source. The Sujarchuk case could have a great impact in a decision pending before the Supreme Court where the intermediaries are not bloggers but important search engines (Google and Yahoo). Though the case “Da Cunha Virginia c/Yahoo de Argentina SRL y Otro s/ daños y perjuicios” –S.C., D.544, L.XLVI.- is not decided yet, the Attorney General in her opinion of the case noted that the “Campillay” doctrine is applicable in cases where the search engines only indicate the place where information is available on the Internet. As I said at the beginning, in Argentina we don´t have legislation like Section 230 of the Communications Decency Act or the DMCA. However, there is strong advocacy in Argentina to clarify and to modernize the law in the country. However, in the meantime, an old doctrine may provide a safe harbor for intermediaries. In other words, some Judges understood that some old wine may fit in a new bottle.